Rome Statute of the International Criminal Court

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Rome Statute of the International Criminal Court

Ambos

4. Auflage 2022

ISBN 978-3-406-74384-9

C.H.BECK

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Rome Statute

of the International Criminal Court

Article-by-Article Commentary

edited by

Kai Ambos

Fourth Edition

2022

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Published by

Verlag C.H.Beck oHG, Wilhelmstraße 9, 80801 München, Germany, email: bestellung@beck.de

Co-published by

Hart Publishing, Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, United Kingdom, online at: www.hartpub.co.uk

and

Nomos Verlagsgesellschaft mbH & Co. KG, Waldseestraße 3–5, 76530 Baden-Baden, Germany, email: nomos@nomos.de

Published in North America by Hart Publishing

An Imprint of Bloomsbury Publishing 1385 Broadway, New York, NY 10018, USA email: mail@hartpub.co.uk

In cooperation with

Göttingen Association for Criminal Law, Criminal Justice and Criminology and their Application

Suggested citation:

[Author], in: Ambos, Rome Statute of the ICC, 4th ed. 2022, Art. [#] mn. [#]

www.beck.de

ISBN 978 3 406 74384 9 (C.H.BECK) ISBN 978 1 5099 4405 7 (HART) ISBN 978 3 8487 7648 1 (NOMOS)

Printed in Germany by Druckerei C.H.Beck Nördlingen (Same adress as the publishing house)

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Enquiries concerning reproduction which may not be covered by the above should be addressed to C.H.Beck at the address above.

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To Otto Triffterer (1931 – 2015),

the founder and father of this Commentary.

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Editor ’ s Preface

This fourth edition of this Commentary

–

founded by the late Otto Triffterer

–

has been thoroughly revised, updated, extended and complemented with further resources, especially a Table of Cases. The Commentary continues to offer a detailed article-by- article analysis of the Statute of the International Criminal Court (ICC). It aims at explaining the content of the various articles in a broader sense, including their drafting history, their interpretation through emerging ICC case law, their impact on Interna- tional Criminal Law (

‘

ICL

’

), and their relation with other sources of the ICC such as the Rules of Procedure and Evidence (

‘

RPE

’

), the Regulations of the Court (

‘

RegC

’

) and the Prosecution (

‘

RegOTP

’

), etc.

The main objective of this new edition was threefold: First, to update the case law, especially of the ICC; second, to take into account most important academic contribu- tions and legislative developments; third, to provide clarity and structure of presentation as well as greater consistency. This alone has been a mammoth task as highlighted by Judge Schmitt in his foreword. We invited a number of new authors with diverse backgrounds in both academia and practice, as can be seen from our Authors’ list.

Several entries have been substantively expanded and deepened and some authors even deviated from the previous edition(s) due to jurisprudential or other intervening developments. As to the listing of previous (no longer active) authors we have followed the general rule of the publisher that their names are removed if they have not been contributing for two editions, i.e., were no longer involved in the third and this fourth edition.

Of course, this Commentary is not meant to be the mouthpiece of the ICC but critically engages, in a constructive spirit, with its case law and its performance in general. The ICC, like every judicial institution, needs not only good faith criticism to constantly improve its performance but also, perhaps more importantly, the continued support from the academic community at large, especially in times where it is attacked by powerful political forces (see for the general context and challenges Mr. O

‐

Gon Kwon

’

s foreword). Wherever critical views do come from, they should be taken into consideration and be discussed openly, rather than being suppressed.

I am very grateful to all authors, both former and current ones. Without the former authors, this Commentary would not be what it is today. The current authors tremendously invested into this edition

–

some (especially new authors) had to update and completely revise their entries in the midst of various other important commit- ments within extremely short time frames. I am especially indebted to Piotr Hof- mański, President of the ICC and Full Professor at the University of Krakow (Poland), Bertram Schmitt, Judge at the ICC and Honorary Professor at the University of Würzburg (Germany), Karim Khan, new Prosecutor of the ICC, Peter Haynes, QC and President of the ICC

’

s Bar Association, and His Excellency O

‐

Gon Kwon, President of the ICC’s Assembly of States Parties, for writing forewords for this edition. These contributions confirm our ongoing and constructive engagement with ICL practice to a great extent represented by the ICC

’

s case law. It goes without saying that all authors write in their personal/academic capacity and their views do not in any way represent their institutions.

Last but not least, I would like to thank my editorial team at my chair at the Georg- August-Universität Göttingen (coordinated by Luca Petersen and Tjorven Vogt and

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mainly composed of Jacopo Governa, Carolin Jaquemoth, Maximilian Menges, Jo- nathan Stelter and Julian Vornkahl and further supported by Dr. Matthias Lippold).

I also thank the publisher C.H. Beck, especially Thomas Klich, Dr. Wilhelm Warth and Aleksandra Had

ž

i

ć

, for accommodating the editor

’

s requests to a large extent and of course for publishing and, together with Hart and Nomos, disseminating the Commentary.

It is hoped that the Commentary will continue to provide a useful guide for both practitioners and academics in various capacities. At any rate, as said in the preface to the third edition, this Commentary is (still) a work in progress and, thus, critical comments are always welcome; they may be sent to ICC-Commentary@jura.uni- goettingen.de.

Kai Ambos, Göttingen/The Hague, August 2021 Editor ’ s Preface

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Editor’s Preface... VII Introductions to the Fourth Edition... XIII Piotr Hofmański, President of the International Criminal Court ... XIII O-Gon Kwon, President of the Assembly of States Parties, ICC ... XIV Bertram Schmitt, Judge International Criminal Court ... XV Karim A. A. Khan QC, Prosecutor of the International Criminal Court ... XVIII Peter Haynes, QC, President of the International Criminal Court Bar Association

(ICCBA) ... XX General Literature... XXI Official and Other Documents ... XXXVII Abbreviations ... XLI List of Authors... LVII

Part 1

Establishment of the Court

Article 1. The Court ... 17

Article 2. Relationship of the Court with the United Nations ... 26

Article 3. Seat of the Court... 49

Article 4. Legal status and powers of the Court ... 98

Part 2 Jurisdiction, Admissibility and Applicable Law Article 5. Crimes within the jurisdiction of the Court... 107

Article 6. Genocide ... 117

Article 7. Crimes against humanity ... 135

Article 8. War crimes ... 317

Article 8bis. Crime of aggression... 686

Article 9. Elements of Crimes ... 727

Article 10. ... 756

Article 11. Jurisdictionratione temporis... 785

Article 12. Preconditions to the exercise of jurisdiction... 805

Article 13. Exercise of jurisdiction ... 834

Article 14. Referral of a situation by a State Party... 853

Article 15. Prosecutor... 881

Article 15bis. Exercise of jurisdiction over the crime of aggression (State referral,proprio motu) 899 Article 15ter. Exercise of jurisdiction over the crime of aggression (Security Council referral) ... 927

Article 16. Deferral of investigation or prosecution ... 933

Article 17. Issues of admissibility ... 945

Article 18. Preliminary rulings regarding admissibility ... 1009

Article 19. Challenges to the jurisdiction of the Court or the admissibility of a case... 1033

Article 20.Ne bis in idem... 1091

Article 21. Applicable law ... 1129

Part 3 General Principles of Criminal Law Article 22.Nullum crimen sine lege... 1149

Article 23.Nulla poena sine lege... 1170

Article 24. Non‐retroactivityratione personae... 1175

Article 25. Individual criminal responsibility ... 1189

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Article 26. Exclusion of jurisdiction over persons under eighteen... 1247

Article 27. Irrelevance of official capacity ... 1255

Article 28. Responsibility of commanders and other superiors ... 1280

Article 29. Non‐applicability of statute of limitations... 1323

Article 30. Mental element... 1328

Article 31. Grounds for excluding criminal responsibility ... 1347

Article 32. Mistake of fact or mistake of law ... 1382

Article 33. Superior orders and prescription of law ... 1405

Part 4 Composition and Administration of the Court Article 34. Organs of the Court... 1423

Article 35. Service of judges... 1430

Article 36. Qualifications, nomination and election of judges ... 1448

Article 37. Judicial vacancies ... 1460

Article 38. The Presidency ... 1474

Article 39. Chambers... 1485

Article 40. Independence of the judges... 1492

Article 41. Excusing and disqualification of judges ... 1497

Article 42. The Office of the Prosecutor... 1508

Article 43. The Registry ... 1522

Article 44. Staff ... 1534

Article 45. Solemn undertaking ... 1544

Article 46. Removal from office... 1547

Article 47. Disciplinary measures... 1557

Article 48. Privileges and immunities ... 1561

Article 49. Salaries, allowances and expenses ... 1571

Article 50. Official and working languages ... 1576

Article 51. Rules of Procedure and Evidence ... 1586

Article 52. Regulations of the Court... 1608

Part 5 Investigation and Prosecution Article 53. Initiation of an investigation... 1623

Article 54. Duties and powers of the Prosecutor with respect to investigations... 1646

Article 55. Rights of persons during an investigation ... 1660

Article 56. Role of the Pre‐Trial Chamber in relation to a unique investigative opportunity... 1677

Article 57. Functions and powers of the Pre‐Trial Chamber ... 1690

Article 58. Issuance by the Pre‐Trial Chamber a warrant of arrest or a summons to appear .. 1710

Article 59. Arrest proceedings in the custodial State... 1732

Article 60. Initial proceedings before the Court ... 1747

Article 61. Confirmation of the charges before trial... 1761

Part 6 The Trial Article 62. Place of trial ... 1835

Article 63. Trial in the presence of the accused... 1848

Article 64. Functions and powers of the Trial Chamber... 1885

Article 65. Proceedings on an admission of guilt... 1931

Article 66. Presumption of innocence... 1949

Article 67. Rights of the accused ... 1966

Article 68. Protection of victims and witnesses and their participation in the proceedings... 2001

Article 69. Evidence... 2037

Article 70. Offences against the administration of justice... 2089

Article 71. Sanctions for misconduct before the Court... 2108

Article 72. Protection of national security information ... 2127

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Article 73. Third‐party information or documents ... 2174

Article 74. Requirements for the decision... 2190

Article 75. Reparations to victims ... 2240

Article 76. Sentencing ... 2263

Part 7 Penalties Article 77. Applicable penalties ... 2273

Article 78. Determination of the sentence ... 2290

Article 79. Trust Fund ... 2302

Article 80. Non‐prejudice to national application of penalties and national laws ... 2311

Part 8 Appeal and Revision Article 81. Appeal against decision of acquittal or conviction or against sentence ... 2317

Article 82. Appeal against other decisions ... 2367

Article 83. Proceedings on appeal... 2384

Article 84. Revision of conviction or sentence... 2412

Article 85. Compensation to an arrested or convicted person... 2427

Part 9 International Cooperation and Judicial Assistance Preliminary Remarks... 2439

Article 86. General obligation to cooperate ... 2452

Article 87. Requests for cooperation: general provisions... 2457

Article 88. Availability of procedures under national law... 2492

Article 89. Surrender of persons to the Court ... 2496

Article 90. Competing requests... 2510

Article 91. Contents of request for arrest and surrender ... 2519

Article 92. Provisional arrest ... 2525

Article 93. Other forms of cooperation ... 2529

Article 94. Postponement of execution of a request in respect of ongoing investigation or prosecution... 2562

Article 95. Postponement of execution of a request in respect of an admissibility challenge ... 2565

Article 96. Contents of request for other forms of assistance under Article 93... 2570

Article 97. Consultations ... 2575

Article 98. Cooperation with respect to waiver of immunity and consent to surrender ... 2585

Article 99. Execution of requests under Articles 93 and 96... 2672

Article 100. Costs ... 2681

Article 101. Rule of speciality... 2684

Article 102. Use of terms ... 2697

Part 10 Enforcement Article 103. Role of States in enforcement of sentences of imprisonment... 2701

Article 104. Change in designation of State of enforcement ... 2722

Article 105. Enforcement of the sentence ... 2725

Article 106. Supervision of enforcement of sentences and conditions of imprisonment ... 2728

Article 107. Transfer of the person upon completion of sentence... 2734

Article 108. Limitation on the prosecution or punishment of other offences... 2739

Article 109. Enforcement of fines and forfeiture measures... 2747

Article 110. Review by the Court concerning reduction of sentence ... 2753

Article 111. Escape... 2764

INTRODUCTIONS TO THE FOURTH EDITION

Piotr Hofmański, President of the International Criminal Court

I was greatly honored by the invitation to write the opening words for the next edition of the Commentary on the Rome Statute of the International Criminal Court, the first editions of which were edited by the late Professor Otto Triffterer and which is now in the capable hands of Professor Kai Ambos.

This book needs no introduction to anyone who has even briefly worked in the field of international criminal law. Although the Rome Statute, which entered into force less than 20 years ago, is still very young, the discipline is very dynamic. This is evidenced by the fact that the fourth edition of the leading Commentary on this treaty

–

the book you are holding in your hands

–

is already being published. In fact, this new edition of the Commentary is very much needed. Five years after the release of the previous edition, we are now in a whole new era in the development of international criminal law. A lot has happened in the meantime. The jurisdiction of the ICC in cases of aggression has been activated and, although no case has yet been brought to trial, the issue is of very strong interest. New war crimes have been added to Article 8 of the Statute. The Assembly of States Parties amended the Rules and Procedure and Evidence, and the Judges of the Court have repeatedly amended and improved the Regulations of the Court and identified best practice reflected in a non-binding but highly useful Chambers Practice Manual. There have been a number of judgments and decisions of the Court, including some that were highly controversial and were probably just the opening of a debate on the directions of interpretation of many provisions of the core legal instruments of the Court.

The coming years will be challenging for the Court. The relatively large number of situations under scrutiny by the Office of the Prosecutor and the investigations already initiated will likely lead to new trials. These proceedings will undoubtedly require the Court to consider and interpret provisions of the Statute that are not yet illuminated by jurisprudence, and to revisit issues touched upon in existing jurisprudence. The Commentary will certainly be a very helpful tool in this work. But, as it is said in the academic world, commentaries generally end exactly where real problems begin. So, let the editors and authors of this Commentary already begin to reflect on new directions of interpretation, which in the near term will result in its fifth edition.

Today, however, let us enjoy the fourth edition of the Commentary, written by academics and practitioners of international criminal law of unquestionable authority. It will be one of the books that, despite its large size, will not need a place on my bookshelf because it will always be on my desk.

The Hague, June 2021

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O-Gon Kwon, President of the Assembly of States Parties, ICC

It is an honour to offer some words of introduction for this Commentary, which is one of the leading academic texts on the Rome Statute and the International Criminal Court.

Just over twenty-three years ago, in a dramatic vote in the early hours of the morning at the Rome Conference, States adopted the Rome Statute of the International Criminal Court. This vote proved to be an historic breakthrough, reflecting a collective determi- nation to put an end to impunity for the most serious crimes of concern to the international community as a whole.

The International Criminal Court has since become, with the crucial support of States Parties and civil society, a fully-fledged and leading international institution in the fight against impunity. The Court is now an integral part of the international system, and its work contributes to the development of the rule of law, the promotion of human rights, and to a more peaceful and secure world. The Court stands as a permanent symbol of hope for the victims of horrific crimes.

We are at a crucial moment in the Court’s development. At its eighteenth session in December 2019, the Assembly of States Parties decided via resolution ICC‐ASP/18/

Res.7 to establish a

“

transparent, inclusive State-Party driven process for identifying and implementing measures to strengthen the Court and improve its performance

”

. As part of that process the Assembly also decided to commission an Independent Expert Review, with a view to making concrete, achievable and actionable recommendations aimed at enhancing the performance, efficiency and effectiveness of the Court and the Rome Statute system as a whole.

The Group of Independent Experts appointed by the Assembly submitted its final report, containing a comprehensive set of recommendations, in September 2020. At the resumed nineteenth session of the Assembly in December 2020, States Parties welcomed the report and the recommendations, and decided to establish a mechanism dedicated to planning, coordinating, keeping track and regularly reporting to the Assembly Presidency and the Bureau on the assessment of the recommendations and further action, as appropriate. The nineteenth session of the Assembly also saw important elections, with the election of new judges and a new prosecutor. The new leadership and potential structural changes represent the beginning of a serious conversation, intro- spection, and positive momentum that will strengthen the Court and enable it to face new challenges and live up to its full potential.

While the Court represents an important stepping stone in the road towards international accountability, it is also facing serious and unprecedented challenges.

Today more than ever we must stand firm together in our relentless commitment to uphold, defend and promote the values and principles enshrined in the Rome Statute, and to preserve the integrity of the Court.

Against this background, I commend the authors and contributors for their efforts to enhance our collective understanding of the Rome Statute and the International Criminal Court. I am confident that their contributions will continue to support the work of the Court as we go forward.

July 2021

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Bertram Schmitt, Judge International Criminal Court

It is my great pleasure and honour to write this introduction to the 4

^th

edition of the Ambos Commentary. Not merely because this is the leading commentary on the Rome Statute and the ICC

’

s legal framework, but above all because this edition deftly takes up and processes a wealth of new developments at the ICC. In that regard, one cannot underestimate the importance of this Commentary as a source of information and reference for anyone dealing with the ICC and international criminal law. It is worth taking a brief look at these recent developments to see the immense achievement of this edition.

I mention first some quite substantial innovations in the legislation of the Court.

Most importantly, the Court’s jurisdiction over the crime of aggression was activated on 17 July 2018, while in 2017 and 2019 four new war crimes were added to Article 8 of the Rome Statute regarding: employing microbial, biological or toxin weapons, employing weapons that injure by fragments undetectable by X

‐

rays, employing laser weapons and the starvation of civilians. In addition, significant amendments were made to the Rules of Procedure and Evidence, such as Rules 134

bis

to 134

quater,

regarding the presence of the accused at trial through video technology and his or her excusal from presence at trial under exceptional circumstances.

In this context, it is also important to note that the Chambers Practice Manual has been significantly amended by the judges for all three stages of the proceedings.

Although it is not binding on judges, the Manual consists of guidelines that the judges have recognised as best practices and that can therefore be considered as basic instructions for judicial work. In that regard, I make special mention of the introduction of timeframes for rendering key decisions. These timeframes are meant to streamline and significantly expedite the process of decision-making and the overall proceedings.

For example, the Manual states that the Pre-Trial Chamber’s written decision under Article 15, paragraph 4, shall be delivered within 120 days from the date the Prosecutor submits a request for authorisation of an investigation. In the same spirit, the Trial Chamber

’

s written decision under Article 74 of the Statute shall be delivered within 10 months from the date the closing statements end. Against the background of my judicial experience, I point out that this Trial deadline is significantly shorter than the deadline required for written judgments of a comparable scope in Germany. Similarly, the Appeals Chamber shall deliver the written judgment in respect of appeals against conviction, acquittal or reparations orders within 10 months of the date of the filing of the response to the appeal brief or respectively, within 10 months of the closing of the oral hearing, if one is to occur.

As important as these innovations are, they are still overshadowed by the jurispru- dential developments since the Third Edition of the then Triffterer/Ambos Commen- tary. The remark of Judge Silvia Fernandez de Gurmendi, at that time President of the ICC, that with

“the increase in the ICC’s case load, we can expect the Court’s body of

jurisprudence to develop rapidly”, can only be seen as prophetic. In the following, I mention only a few of the important steps in criminal proceedings since 2015 which all contributed to this body of jurisprudence and are addressed within this edition of the Commentary:

Mr Bemba was convicted by Trial Chamber III and subsequently acquitted upon appeal. Mr Bemba, Mr Kilolo, Mr Mangenda, Mr Babala and Mr Arido were convicted Introductions

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by Trial Chamber VII for offences against the administration of justice (Article 70 of the Statute); their convictions were upheld upon appeal. Mr Al Mahdi was convicted by Trial Chamber VIII for the war crime of destruction of protected property after he made an admission of guilt (Article 65 of the Statute). Mr Ntaganda was convicted by Trial Chamber; Mr Gbagbo and Mr Blé Goudé were acquitted by Trial Chamber I. The Appeals Chamber has confirmed these decisions. Moreover, Mr. Ongwen was convicted by trial Chamber IX, appelate proceedings are pending. It is worth noting that the aforementioned proceedings produced a lot of procedural decisions, such as on the admission of guilt by the accused, the submission/admission of evidence, witness preparation and the introduction of Rule 68 statements. Apart from the above, repara- tion proceedings are underway in four cases (Lubanga, Katanga, Al Mahdi and Ntanganda) and in preparation in one case (Ongwen).

Moreover, with regard to the pre-trial stage, charges against three suspects were confirmed and their cases sent to trial (Mr Al Hassan, Mr Yekatom and Mr Ngaïssona).

One suspect in the Darfur situation was surrendered to the Court after the first warrant of arrest was issued 13 years ago in 2007 and preparations for the confirmation hearing are ongoing (Al Kushayb). Three new investigations were authorised (Burundi, Afgha- nistan and Myanmar/Bangladesh, the latter with an important interpretation regarding the Court’s territorial jurisdiction). The case law taken into account in the Commentary further includes two important decisions: the admissibility challenge of a person alleging that he has already been tried (ne bis in idem), which led the Court to also make first pronouncements on the applicability of amnesties and pardons in the context of international crimes (Saif Al Islam Gaddafi), and the question of whether immunities of heads of States can be invoked by States Parties when asked to execute warrants of arrest (Al Bashir).

Lastly, the Prosecutor declined to open two investigations referred by States Parties (Gabon and Union of the Comoros). One of those States Parties challenged the Prosecutor

’

s decision not to open the investigation (Article 53 of the Statute) which led to lengthy litigation (Union of the Comoros).

The above selection of significant judicial developments makes it more than clear that the Court is fully operational. The Court remains steadfastly true to its mandate against all resistance and pressure it faces. It also deserves mention that in general the proceedings at the Court have been accelerated considerably and their duration is comparable to that of large-scale cases in other international and national jurisdictions.

The wealth of case law means that this edition of the Ambos Commentary had a lot of new judicial material to process. In this respect, the Commentary is a reliable source of information, allowing a quick reference to the most important developments at the ICC.

The authorship, composed of practitioners and academics, organises the case law and distils trends in the Court’s voluminous jurisprudence that are otherwise difficult for external observers to discern. This makes the Commentary an indispensable tool for practitioners, not only at the ICC, but also

–

importantly

–

the many practitioners at the domestic level who increasingly investigate and prosecute international crimes,

“

in complementarity

”

to the ICC. Thus, the Commentary helps disseminate the Court

’

s jurisprudence and contributes to the emergence of a homogenous interpretation of key notions on a global scale.

The authors of this work deserve great praise. Their comments are scientifically sound and faithfully reflect the jurisprudence of the Court. Likewise, Professor Ambos, who has taken on the mammoth task of editing this work, deserves the highest recognition. Anyone who has ever edited a legal work can appreciate what it means to publish a commentary of this size with such a large number of authors, while

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maintaining the highest scientific standard throughout and, if need be, kindly asking the authors to meet the deadlines. This Commentary has always been a book of great authority. Yet, it is now more important than ever. As the jurisprudence of the Court increases so will the relevance of a commentary such as this. In sum, I am confident that the 4

^th

edition of the Ambos Commentary will consolidate its status as the leading commentary on the Rome Statute and international criminal law.

The Hague, June 2021

Introductions

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Karim A. A. Khan QC, Prosecutor of the International Criminal Court

I think it was a sunny day in mid-1998 that I met Professor Otto Triffterer for the first time. Professor Morten Bergsmo, then a colleague of mine at the ICTY and also a contributor to this work, kindly introduced me to the late Professor who then graciously invited me to participate in his nascent project, which I was honoured to accept.

“

Triffterer

’

s Commentary

”

quickly became the standard commentary of the Rome Statute. I feel genuinely humbled

–

almost 23 years later

–

to have been invited by his successor as Editor-in-chief, Professor Kai Ambos, to write this Preface. I am delighted to welcome this 4

^th

edition of what is now rightly known as the

“

Ambos Commentary

”

on the Rome Statute. It is, in my opinion, the leading Commentary on the Rome Statute and has the advantage of being distilled in one volume and written by recognised experts in the field of international criminal law.

Since the first edition of this Commentary was published more than twenty years ago, it has become an indispensable companion for any practitioner appearing before the International Criminal Court. I know that for many colleagues it has become the first point of reference when considering any novel issue in the interpretation of the Statute or in the practice of the Court. With the arrival of this 4

^th

edition, I am confident that the Ambos Commentary will continue to be essential reading for practitioners, judges, and researchers alike.

The jurisprudence of the International Criminal Court has moved on in significant respects in the years that have passed since the 3

^rd

edition was published. Examples of these developments are many and varied and include the jurisprudence on jurisdiction in the situation in Bangladesh/Myanmar, the conviction and sentencing of Ahmad al- Faqi al-Mahdi for intentionally directing attacks against religious and historic buildings, the appeal decision in the

Gbagbo

and in

Ntaganda

cases and the contempt proceedings in

Bemba et al. The authors of the 4^th

edition have risen to the challenge of comprehensively updating the text to reflect the many developments in the Court’s jurisprudence.

Professor Ambos deserves our thanks for his herculean efforts in editing this Commentary. He is an eminent jurist and this work is just one example of his many contributions to the field of international criminal law. For this edition in particular, as well as providing a comprehensive update on the law, Professor Ambos set out to improve the consistency and structure of the presentation of the Commentary. This may not appear to be the most glamorous of tasks, but it is certainly an essential one to ensure that the standards of the 4

^th

edition remain the highest

–

and I am certain that readers will be grateful for it.

As I step into my new role as Prosecutor of the International Criminal Court, I am acutely aware of the myriad challenges facing the Court and the Office of the Prosecutor. I am equally aware of the myriad opportunities for the Court to grow as an institution, to have a positive impact in fortifying the rules-based system and in doing so to deepen its recognition internationally.

For the Court to be further strengthened as an institution, it is essential that we

increase understanding of the methods and value of its work amongst all those who are

affected by

–

or involved in

–

its proceedings. As I noted upon my swearing-in as

Prosecutor, we have the honour to work within a body of law that is owned by

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humanity, that belongs to each and every one of us. The Statute is not the property of any legal tradition or geographic region but represents a collective promise that we will stand united in seeking justice for those impacted by the worst of crimes. If we are to engender the sense of common cause needed to realize this promise, we must seek wherever possible to increase transparency and understanding of our work. In those endeavours, I welcome the role played by commentaries such as this 4

^th

edition in explaining the Statute and jurisprudence of the Court.

The Ambos Commentary has become the standard work in the area and I am sure this Fourth Edition will be welcomed by all.

Baghdad/The Hague, June 2021

Introductions

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Peter Haynes, QC, President of the International Criminal Court Bar Association (ICCBA)

At the risk of being accused of hyperbole, I regard the invitation from Professor Ambos to write a few words of introduction to the fourth edition of the Commentary on the Rome Statute as one of the greatest honours of my professional career.

“

Triffterer

”

has for more than 20 years been the

“

Bible

”

on the law, practice and procedure at the International Criminal Court and it has received far more worthy

imprimatur

than mine. Soon to become known as

“Ambos”, no doubt, in eponymous

recognition of its stellar editor in chief, it will continue to be the touchstone for anybody aspiring to practice at the court.

I have had the pleasure to know and work with Professor Kai Ambos. His contribu- tion to the topic of International Criminal Law is remarkable and there can be few, if any, with a greater understanding of the constitution and jurisprudence of the ICC. He has, moreover, here assembled a collection of contributors of impeccable pedigree and arranged the fourth edition of the work in a concise and logical way. Structurally and substantively, it is a fine piece of work and an improvement on its predecessor.

It arrives at an important time for the ICC. By the time of going to press, a new prosecutor will have been sworn in. The court and the Assembly of States Parties, moreover, will have to commence prioritizing and implementing the three hundred or so recommendations of the Independent Expert Review into governance and operations at the court. A new era is approaching.

Furthermore, jurisprudentially, much has happened in the years since the publication of the Commentary’s 3

^rd

edition: new offences have been added to the statute, previously untested modes of liability tried and analysed on appeal, innovative proce- dures have been created and refined (for example, the NCTA process, trailed in

Ruto

and

Gbagbo), the extent of the court’

s geographical jurisdiction has been expanded in the Myanmar/Bangladesh and Palestine situations and the

locus standi

of victims

’

legal representatives at earlier phases of the process reappraised.

One other significant development in the last five years has been the creation of the International Criminal Court Bar Association (ICCBA) of which I have the privilege to be the fourth president. The myriad benefits of a bar both to its members and the court need no amplification, save to say that the ICC now has an effective interface with those independent practitioners who represent accused, victims, governments,

amici

and other interested parties and those practitioners have a core and a voice.

One of the ICCBA

’

s central objectives is to ensure that its members, comprising both counsel and junior staff, are up to the mark as practitioners before the court. Training on specific areas is, of course, regularly delivered, however, for a compendious under- standing of the court’s operational matrix and case law, an authoritative reference work is indispensable. In that regard, Ambos

’

Commentary on the Rome Statute has no peer.

It is not just essential reading for independent practitioners, it

’

s the tome they must have in their armoury, the book that the prosecutor will cite in his filings, and to which the judges and their ALO’s will resort in their decisions.

I happily commend this single volume to all of those who practice independently at the court

–

it is the paddle that may keep you afloat in turbulent waters!

The Hague, June 2021

XX

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General Literature

XXIX

Rome Statute of the International Criminal Court